Children in Nursing Homes: Florida Rejects Court Oversight in Dispute With U.S. Justice

Florida health officials Friday expressed willingness to resolve a dispute with the U.S. Department of Justice about placement of disabled children in nursing homes — but balked at the possibility of federal court oversight.

Attorneys for the state Agency for Health Care Administration, the Department of Health and the Department of Children and Families sent a letter to Washington that followed up on a Nov. 15 meeting between state and federal officials.

The Department of Justice in September alleged Florida was violating the Americans with Disabilities Act by improperly placing disabled children in nursing homes and threatened legal action. The letter Friday outlined steps the state has already taken or plans to take to improve the system in the Medicaid program, but it said Florida cannot agree to a Department of Justice proposal for federal court oversight through what is known as a “consent decree.”

The letter said a consent decree “is the appropriate remedy when a state is in violation of the law. The state of Florida is not in violation of any federal law related to its Medicaid service-delivery system, and it respectfully does not concur with the department’s as-yet unsubstantiated allegation that Florida is currently violating federal law.”

Also, the letter said the state does not “share the department’s position that a federal judge is better able to manage the dynamic needs and operations of the state’s Medicaid system.”

The details of the closed-door meeting Nov. 15 are not clear. But a day after the meeting, Anne Raish, a civil rights official at the Department of Justice, wrote a letter to state officials that said the meeting involved discussions about the department’s investigation, “the systemic violations the department identified during its investigation and a path forward to resolving this matter.”

“As we discussed at our meeting, the most expeditious way to protect the rights of the children in and at risk of unnecessary institutionalization in nursing facilities and to ensure that Florida families have a meaningful choice about the services their children receive is through working together towards a mutually agreeable resolution, not through contested litigation,” Raish’s letter said.

State officials have adamantly rejected the Department of Justice’s allegations that Florida is not properly serving the children, who have medically complex conditions such as requiring ventilators or tracheostomy tubes that help them breathe. The Department of Justice argues that the state has not complied with part of the federal law that requires people with disabilities to receive services in the “most integrated setting appropriate” — such as at home with their families or in their communities.

Meanwhile, advocates for the disabled filed a federal lawsuit earlier this year against the state because of the issue. They filed a motion this week to certify the case as a class action on behalf of more than 3,000 children in nursing homes or “at risk” of being placed in such facilities.

In the letter Friday, state officials said they would be willing to work with the Department of Justice to develop a written plan detailing how Florida will “improve upon its already excellent Medicaid service-delivery system. Such a plan would necessarily include objective measures by which the department could assess the state’s successful accomplishment of our mutual goals and objectives.”

But in a statement emailed to reporters late Friday, Agency for Health Care Administration Secretary Liz Dudek also stood firmly behind the state’s position that it is complying with all laws and that children already can receive services in their homes.

“We continue our outreach to parents and advocates regarding concern about the availability of medical services,” Dudek said in the statement. “All medically necessary services are available to children enrolled in the Medicaid program. The state believes strongly that individuals, especially Florida’s most medically fragile children, deserve to be cared for in the least restrictive setting that can best serve their medical needs.”